As expected, Judge Denise Cote yesterday denied attorney and RoyaltyShare founder Bob Kohn’s motion to intervene in the Department of Justice’s price-fixing settlement with publishers for the purposes of an appeal. Kohn, however, immediately filed an appeal of Cote’s denial, and that appeal could yet give Kohn what he ultimately sought as an intervener—a chance to argue against the settlement in a higher court.

“As I have said before, it didn’t matter how the District Court ruled on my motion,” Kohn explained to PW. “I still get to appeal the court’s denial of my motion, which will enable me to also present to the Court of Appeals the reasons why Judge Cote’s entry of judgment against the book publishers should be reversed.”

In her 10-page opinion, Cote acknowledged that the law permits the court to allow parties to intervene with “a claim or defense that share with the main action a common question of law or fact.” She ruled, however, that Kohn failed to meet that burden.

“Kohn’s expressed interest in the action as a ‘consumer of e-books and e-book systems’ who fears that the Final Judgment may result in consumers paying less ‘efficient’ prices for e-books, or that it may stifle competition in what Kohn terms the e-books systems market,” Cote wrote. However, “Kohn’s legal theories are not ‘claims or defenses’ that share a common question of law or fact with the claims and defenses of the parties,” she ruled, adding that the “Court of Appeals should not be burdened by an appeal filed by a member of the public who does not qualify as an intervener.”

For good measure, Cote added that she had already considered Kohn’s analysis of the “factual and legal” issues via his Tunney Act public comment, and his five-page amicus brief—which Kohn filed in comic form. “Through these two avenues, [Kohn] was given a full opportunity to express his personal views on the Government’s theory of the case and the state of competition in the e-books market,” Cote wrote. Should Apple ultimately file an appeal, the judge added, Kohn can apply to make his arguments again to the Court of Appeals—in another amicus brief.

Kohn, however, says he doesn’t need to wait for Apple, and is ready to take his shot at the Appeals Court now, arguing that Cote erred in not granting him standing to intervene. Citing a 2004 Microsoft case in which two trade associations were permitted to intervene although neither of them shared any common claims or defenses.

“Consistent with her past unwillingness to accept normal-length legal briefs or to hold public hearings in this case, Judge Cote now seems resistant to the accountability of appellate review,” Kohn told PW. “Like the DoJ [in its opposition brief to Kohn], the Court did not address, because it could not explain, the decision in the 2004 Microsoft case in which two trade associations were allowed to intervene for the sole purposes of appeal on the same basis that I moved to intervene in this case.”

The Court of Appeals will now establish a briefing schedule, Kohn says, usually a 60 to 90 day process, and will then have a hearing—the appeal, Kohn says, is not discretionary. “I will get my day in court and I will present all the arguments Judge Cote refused to address in her decision,” Kohn told PW. “I look forward to presenting my case that the settlement is not in the public interest and the book publishers did nothing wrong."

In case there was any doubt, Kohn insists to PW he is in for whatever it takes, including an appeal to the Supreme Court, if necessary. "My aim is to get this case thrown out," Kohn states, "before it does further damage to consumers, authors and the book industry.”

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